Citizens' Trust Co. v. Coppage

• Decision Date: 16 December 1920
• Docket Number: No. 2525.,2525.
• Citation: 227 S.W. 1057
• Parties: CITIZENS' TRUST CO. v. COPPAGE et al.
• Court: Missouri Court of Appeals

227 S.W. 1057

CITIZENS' TRUST CO. v. COPPAGE et al.

No. 2525.

Springfield Court of Appeals. Missouri.

December 16, 1920.

Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Suit by the Citizens' Trust Company, as receiver of the Pemiscot County Bank, against R. F. Coppage and others. Judgment for defendants, and plaintiff appeals. Affirmed.

C. G. Shepard, of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondents.

FARRINGTON, J.

This is a suit brought by the Citizens' Trust Company, as receiver of the Pemiscot County Bank, against A. C. Tindle, W. H. Johnson, and R. F. Coppage, as copartners, doing business under the firm name of Concord Mercantile Company, to recover on a note in the sum of $2,040, dated February 15, 1913, payable to the Pemiscot County Bank and signed Concord Mercantile Company, by W. H. Johnson. This is the second appeal of this case, the first being reported in 194 S. W. 1066, to which reference is made for the facts then presented. When we use the word "plaintiff," we mean the Pemiscot County Bank.

The facts around which the parties claim in this case may be briefly stated as follows: About January, 1911, Tindle, Johnson, and Coppage formed a copartnership for the purpose of engaging in the mercantile business, and purchased a store then in existence from one Harry Henderson located in the country neighborhood called Concord, and gave the name of their business that of Concord Mercantile Company. Their place of business was located a short distance from Caruthersville, where the plaintiff bank was engaged in business.

The record shows that the Concord Mercantile Company made a note to the plaintiff bank under date of July 15, 1912, in the sum of $2,000, which said amount was credited to said mercantile company on the books of the bank on the 21st of August, 1912, and the note sued on in this case is a renewal of that note with accrued interest, making the sum of $2,040. A. C. Tindle was the cashier of plaintiff bank during all the times mentioned and had been its cashier for a number of years and continued so until about the 10th of May, 1913, at which time the bank was found to be in failing condition by reason of Tindle's misappropriation of its funds and using them in various enterprises in which he was a party at interest. The plaintiff bank failed and quit business on the 5th of June, 1913, and shortly after its failure a public accountant was employed to make a complete audit of the bank's affairs, going back as far as 1910, and in making this audit he likewise audited the different accounts with the bank in which Tindle was a party in interest, including the Concord Mercantile Company, and found that Tindle had used in various enterprises $458,000 of the funds belonging to the bank, for which no accounting had been made.

Before entering on the trial of this case, plaintiff dismissed as to Tindle and Johnson, they being insolvent, and the case was tried on the separate answer of Coppage alone. The defense principally relied upon by defendant Coppage was that the Concord Mercantile Company had sold its business and been dissolved long prior to the making of the note in suit and some six months prior to the making of the first note, of which the present note is a renewal; that, the copartnership having been dissolved, W. H. Johnson, one of the copartners, could not bind the other copartners by making either of said notes. The plaintiff does not question this as a proposition of law, but it claims that the sale of the stock of goods, while acting as a dissolution of the copartnership as between the copartners, yet that would not be sufficient to prevent the partners from binding each other in a transaction in the name of the copartnership unless the parties had notice of the sale working the dissolution. The defendant claims that the plaintiff bank had full knowledge of the fact at the time of taking both the original and renewal notes.

It will thus be seen that plaintiff seeks to hold defendant Coppage liable on this note solely by reason of his partnership relation to the dissolved partnership. There is no claim that he was consulted or gave his assent to the giving of either the original note for $2,000 on July 15, 1912, or the renewal note sued on, or had any knowledge of same until long after the failure of the plaintiff bank in June, 1913, although he was living in the same town and doing business across the street from that bank. On the contrary, the defendant testified, without contradiction, that when the Concord Mercantile Company dissolved and quit business on January 1, 1912, by then selling out its business, the assets of the firm exceeded its liabilities and there was nothing to do except to collect such assets and pay the firm debts; that, had this been done, there was no need to borrow money in the name of the dissolved firm. In our former opinion we stated that the business of collecting the assets and paying the firm debts was intrusted to the partner Johnson, but the record now shows that Tindle was the dominating factor in this, as in all the business connected with his bank; and that Johnson as an employee merely did the routine and clerical work. It also appears in the present record that a considerable part of the assets of the firm used in paying its debts consisted of the note or notes for $3,750 given by Harry Henderson as the purchase price of the Concord Mercantile Company's stock of goods. Instead of holding...